Parliament has defined the circumstances in which consumers should receive protection, and has done so in a range of discrete legislative enactments, but even within the legislative enactments there has been no single definition of“consumer” which is to be used within the consumer-protection legislation generally.12Each legislative intervention within domestic English law has been a response to a perceived need for protection of a particular kind, which has therefore involved different definitions of the protected party, devised for the policies underlying and justifying the particular intervention—and sometimes “consumer” has even
8National Westminster Bank plc v Morgan[1985] AC 686, 708.
9Cartwright (2016), Ch 2.
10Cartwright (2016), pp. 28–34.
11Cross et al. (1995), pp. 105–112; Beale (2015), [38–013], [38–017].
12Beale (2015), [38–027]-[38–046].
included persons acting within the context of a business.13In any legal system this may be the appropriate response:“consumers”are a broad category, the limit of which may need to be nuanced when deciding upon particular interventions based on a policy of protection. But this individualised definition of“consumer”is even more natural in English law, where there is no general expectation that legislation will be dove-tailed to form a coherent, systematic whole. Statutes are particular interventions to address particular problems, and even though it may seem odd and rather confusing for different statutes to use the same term without it having exactly the same meaning, this is not really unusual in English law, given the natural instinct of the English lawyer, whether in statutes or in contracts, to give a formal, precise and individual definition of the terms used. There may well, of course, be a general common core to the different definitions, but as long as each statute defines
“consumer”for its own purposes, there is no general difficulty in the fact that they may differ.
There is a further point to consider. Some legislative intervention in the consumer field has been on the purely domestic level, to fulfil domestically-defined policies.
But much of the more recent intervention has been in response to EU Directives. The traditional approach in the UK is for the Government to take measures—sometimes by statute, but often by delegated legislation14—which implement EU Directives more-or-less according to the letter of the Directive, including therefore taking definitions (such as“consumer”) directly from the Directive in question. This has led to each implementing Act or set of Regulations containing an individual defini- tion of“consumer”, taking the definition used in the Directive which it implements, which accordingly varies in its detail as the definitions in the different Directives also vary, although there is often some tailoring of the definition from the Directive, either to conform to the more usual terminology of domestic law,15 or tofit with other domestic policies.16
13E.g. Unfair Contract Terms Act 1977 s 12 as interpreted inR & B Customs Brokers Co Ltd v United Dominions Trust Ltd[1988] 1 WLR 321; Consumer Credit Act 1974 below, Sect.5.1.
14European Communities Act 1972 s 2(2) permits the Government to implement EU obligations by delegated legislation, such as Regulations. The discussion in this paper refers only to English law as it is currently enacted, and cannot take into account any changes that may be made in due course to provisions now based on EU Directives, when the UK leaves the EU in 2019.
15E.g. Directives commonly refer to the consumer as a“natural person”; some implementations have followed this (see e.g. Unfair Terms in Consumer Contracts Regulations 1994 reg 2(1)), but more recently it has become normal to use the term“individual”(see e.g. Consumer Rights Act 2015 s 2(3)).
16E.g. Directives commonly refer to the consumer acting for purposes which are“outside”his business, but since 2012 the UK implementing legislation has referred to those acting for purposes that are“wholly or mainlyoutside”the business—a conscious decision to widen the scope of protection beyond the interpretation of the European Court of Justice inGruber v Bay Wa AG [2005] Case C-464/01, [2006] QB 204 (which held that an individual does not act as a consumer if the element of business use was non-negligible): see Law Commission,“Consumer Redress for Misleading and Aggressive Practices”(Law Com No 332, 2012) paras 6.11 to 6.13.
Although the result of this piecemeal legislation on consumer law is a patchwork of provisions without a uniform definition of “consumer”, on occasion the UK legislator has sought to remove some of the divergences where they cause particular difficulty or confusion, and there has been a general trend in recent years to follow a common pattern for the legislative definition of“consumer”. The best illustration is found in the context of unfair contract terms. Thefirst general domestic legislation in England aimed at controlling unfair contractual exclusion and limitation clauses (and unfair non-contractual notices, in so far as they can exclude or limit non-contractual liability) was the Unfair Contract Terms Act 1977, which regulated both consumer and non-consumer contracts and notices, but its definition of “dealing as a con- sumer”17did not limit the“consumer”to being a natural person. The section was interpreted by the courts as extending even to corporations as long as the transaction in question was neither an integral part of their business, nor conducted with a sufficient degree of regularity to make it part of the business.18But when the UKfirst implemented the Directive on Unfair Terms in Consumer Contracts in 1994,19it did so without seeking to assimilate the new law with the existing provisions, and without amending the definition of“dealing as a consumer”in the 1977 Act, even though there was a clear difference between the definitions and even though the two provisions could apply to the same facts, with different results. The existence of two separate but overlapping regimes of protection was criticised in 2005 by the Law Commission,20 which proposed that they be replaced by a new single piece of legislation, with a new definition of “consumer contract” but which excluded non-natural persons. This proposal was not implemented, but eventually the Con- sumer Rights Act 2015 had a similar effect, replacing both the consumer provisions in the 1977 Act, and the 1999 Regulations, by a new unified regime for unfair terms in consumer contracts. The definition in the 2015 Act, although it applies only for the purposes of that Act, is also a formulation which has now been used as model in
17Unfair Contract Terms Act 1977 s 12(1), as originally enacted in 1977. Certain aspects of this definition were amended by Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002/
3045) to implement Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, [1999] OJ L171/12.
18R & B Customs Brokers Co Ltd v United Dominions Trust Ltd[1988] 1 WLR 321.
19Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] OJ L95/29, implementedfirst by Unfair Terms in Consumer Contracts Regulations 1994 (SI 1994/3159), and later re-implemented by Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083).
The definition in the Directive (art 2(a):“‘consumer’means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profes- sion”) was not reproduced precisely in the 1994 Regulations (reg 2(1):“‘consumer’means a natural person who, in making a contract to which these Regulations apply, is acting for purposes which are outside his business”), but the 1999 Regulations followed the Directive almost exactly (reg 3(1):
‘“consumer’means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession”).
20Law Commission and Scottish Law Commission,“Unfair Terms in Contracts”(Law Com No 292, 2005).
relation to most of the recent consumer protection legislation, whether domestic or EU in origin21:
‘Consumer’means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.22